The Department of Justice has urged the 1st U.S. Circuit Court of Appeals to reverse a March district court ruling that prevented 13 of 15 members appointed to the CDC's key vaccine advisory body from continuing to serve. In a brief filed late Wednesday, the DOJ said the order by U.S. District Judge Brian Murphy has effectively left the Advisory Committee on Immunization Practices - ACIP - unable to carry out its annual guidance on influenza vaccines.
At the center of the dispute is Health Secretary Robert F. Kennedy Jr.'s overhaul of ACIP. The brief notes that Kennedy removed 17 independent experts who previously sat on the panel and replaced them with new appointees. Judge Murphy found that 13 of those appointments were made through a process that violated the Federal Advisory Committee Act, and he barred those appointees from serving.
The Justice Department did not seek to overturn every aspect of Murphy's ruling. It made clear it is not challenging the part of the decision that keeps on hold the Centers for Disease Control and Prevention's earlier action, dated January 5, to reduce the number of childhood vaccinations routinely recommended. That means the CDC's proposed cuts to its routine childhood immunization schedule will remain suspended while litigation continues.
Nor did the administration ask the appeals court to reverse the district judge's decision to set aside several votes taken by ACIP after Kennedy's appointments. Those votes included recommendations that would have downgraded the guidance for newborn hepatitis B vaccinations and broad recommendations for COVID-19 shots. Those particular determinations remain set aside under Murphy's order.
Instead, the Justice Department framed its appeal narrowly. It argued the district court exceeded its authority by excluding the 13 appointees on the basis that the appointment process was "tainted." According to the DOJ brief, the judge effectively placed "structural handcuffs" on the committee by removing a sufficient number of members that ACIP cannot form a quorum to conduct its annual flu vaccine deliberations. The brief warned that if the decision stands, any urgent response to a pathogen would require the court's involvement before the advisory body could act.
Medical groups that sued over the administration's vaccine policy changes have pushed back. Richard Hughes, representing the American Academy of Pediatrics and other health organizations, said in a statement that he is confident his clients will succeed on appeal. He accused Secretary Kennedy of prioritizing appointments aimed at dismantling rather than restoring established vaccine policy.
In his March opinion, Judge Murphy criticized Kennedy's approach to selecting ACIP members. According to the ruling, Murphy concluded Kennedy paid little to no attention to statutory requirements that advisory panels be balanced and that he selected individuals the judge considered "distinctly unqualified" - many lacking substantial experience with vaccines.
The Justice Department countered that the Federal Advisory Committee Act does not provide a vehicle to challenge individual committee appointments and that a federal judge should not be re-evaluating executive staffing choices by reviewing candidates' resumes one by one. "A federal judge who substitutes his own assessment of those questions has crossed the line between judicial review and executive staffing," the DOJ brief stated.
At the department's request, the 1st Circuit agreed on Tuesday to fast-track the appeal. The court set an expedited briefing schedule, requiring all appellate briefs to be filed by late July.
Context limitations - The administration's appeal is narrowly focused on restoring the membership so that ACIP can form a quorum for its annual influenza vaccine recommendations. Other parts of the March ruling, including the pause on the CDC's reduction of routine childhood vaccinations and the setting aside of certain post-appointment votes, remain in force and are not being challenged in this appeal.